024-NLR-NLR-V-12-TIKIRI-KUMARIHAMY-v.-DE-SILVA-et-al.pdf
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im.March 2.
[In Review.]
Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,Mr. Justioe Wendt, and Mr. Justice Middleton.
TIKIRI KUMARIHAMY v. DE SILVA e< al.
D. C., Regalia, 1,879.
Kandyan lew—Donation for past services—Renunciation of right torevoke—Irrevocability.
A Kandyan deed of gift made in consideration of past servicesrendered by the donee to the donor and containing a clause re-nouncing the right of revocation is irrevocable.
H
EARING in review of the judgment reported in (1906) 9 N. L.
R. 202.
Bawa (with him Batuwantvdawe), for the plaintiff, appellant.
Walter Pereira, K.G., 8.-G. (with him Samarawickreme), for thedefendants, respondents.
Cur. adv. vult.
March 2, 1909. Hutchinson C.J.—
This is a hearing in review. The first question debated was oneof Kandyan law, as to the revocability of a deed conveying lands totho grantee in consideration of past payments and services. Thedefendants claim under that deed. The plaintiff claims under asubsequent deed, by which the grantor purported to revoke theearlier one. If the earlier deed was irrevocable, the plaintiff canonly succeed by proving title by prescription ; and the secondquestion is whether he had proved such a title. The decisions underreview were adverse to the plaintifE on both points.
The deed, which has been held to be irrevocable, is dated May 25,1864, and is fully set out in the judgments under revuew. Thegrantor in consideration of services rendered to her for the last fouryears by her daughter Madduma, and of expenditure in cash ofabout £100 incurred by Madduma for physicians and medicines forher, transferred certain lands to Madduma, and covenanted thathenceforth the grantor and her heirs, &c., would raise no disputeagainst “ this donation,” and that, if any such dispute should arise
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during her lifetime, she would deliver the lands from this day forthto Madduma, who should hold and possess them for ever withoutdispute.
The appellant’s counsel contends that the rule to be extractedfrom the conflicting decisions and dicta is that by Kandyan lawevery deed of gift of lands (with some exceptions which do not applyin this case) is revocable by-the donor, even if it contains a clause bywhich the donor purports to renounce his right to revoke; and thata deed executed for a past consideration is a deed of gift. Andit seems to be the law that a grant of land in consideration only ofthe grantee undertaking to render services to the grantor in thefuture is to be construed as a conditional grant and is revocable,subject to the right of the grantee to recover compensation forexpenses which he may have incurred in reliance on the grant. Therespondent contends that a grant made in consideration of pastservices is irrevocable, at any rate if the deed contains a clausedebarring the grantor from revoking it.
In my opinion the respondent’s contention is right, and this caseis concluded by She decision of the Full Court in D. C., Kurunegala,13,801, reported in 3 Lorenz 72 and quoted in the judgments underreview.
I should have liked to inquire into the reason for these rules inKandyan law, and as to whether or why a man should not be allowedto bind himself not to revoke his deed of gift, and whether or whythe ordinary covenant for title, whereby the grantor covenants thathe will not dispute the grantee’s title, is not equivalent to a covenantnot to revoke the gift, and whether or why any such covenant isnecessary in order to make a grant in return for past servicesirrevocable. But as it is not necessary to decide these matters inorder to decide this question, I will leave them alone.
The appellant referred us to Dingiri Menika v. Dingiri Menika,1in which a grant of land to a woman, in consideration of the factthat the grantor’s son was to be married to her, was held to berevocable, on the ground that a grant of that kind is a gift and nota transfer for value. The reasoning of the Court was this. All“ donations ” are revocable ; a grant in consideration of marriage isa “ donation ”; therefore it is revocable, there being no authority inKandyan law to the contrary. The argument assumes that sucha grant is a “ donation,” that is, a gift. That question, however,does not arise here, and the decision did not purport to over-ruleand could not over-rule the Kurunegala case, from which the presentcase cannot be distinguished.
On the question of prescription, after considering the argumentsaddressed to us on behalf of the appellants, I remain of the sameopinion which I gave in the judgment under review. I think thedecrees of the Supreme Court should be affirmed with costs.
1 (1906) 9 N. L. E. 131.
1909.
March 2.'
Hutchinson
C.J.
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Wundt J.—
1908. This oase divides itself into two branches—one concerned withMarch 2. title by deed to the land in dispute, and the other with title byprescriptive possession. The first District Court judgment decidedthat title by deed was in the plaintiff, by reason of the donation of1864 having been revoked, but the Supreme Court reversed thatdecision, with the result that the title was placed in the presentrespondents; and plaintiff, in order to succeed, had to establishprescriptive possession of the land. The second District Courtjudgment held that she had established it, and declared accordingly.In review, both branches of the case have been fully argued. Asregards the first, I remain of the opinion I expressed upon theoriginal appeal, viz.,.that the deed of gift was irrevocable, and Ihave nothing to add to the reasons given by my brother WoodRenton and myself for that conclusion. No fresh material was •adduced upon this point of law at the review hearing. I confinemyself to the second branch of the case—the question of prescriptivepossession by plaintiff.•
The land claimed by plaintiff is that made up of lots 1, 2, 3,4, and5 on Mr. Ferdinands’ survey plan filed of record, some 20 acres inextent. The evidence led by plaintiff as to possession had referenceto this land. There is reason, however, to believe that what wasconvoyed to her by her mother was some distance away, adjoining(or at all events adjacent and appurtenant to) lot 7, which is Galapita-watta. The parcel in question is described in the conveyanceNo. 9,617 as “ the land called Galgodahena appertaining to this(t.c., to Galapitawatta) of one amunam paddy sowing extent (about2 acres).” According to the amended plaint, plaintiff claims lots1 to 6 as forming part of Galagodahena—20 acres included in 2.If, then, the land conveyed was in the immediate neighbourhood oflot 7, that is a reason for doubting that plaintiff under her convey-ance entered into possession of the distinct and separate and muchlarger area covered by lots 1 to 5. Plaintiff herself never saw theland except once, about thirty years ago, before the discovery ofplumbago, which so enhanced its value. By an informal writingPP 1 dated March 12, 1897, attested by first added defendant, hernephew, she gave over to Kirihamy and another “ about 3 amunamsof paddy sowing extent (say 6 acres) out of Galgodaheneyaya ” forchena cultivation. The termination “ heneyaya,” which means atract of chenas, is new. Plaintiff’s deed gives “ hena ” a singlechona. Kirihamy discovered plumbago, and plaintiff says shegave verbal permission to first added defendant and a Moorman todig for plumbago, and that for about six years they rendered to herone-tenth share of the yield, after which she “leased” to theMoorman, and later the defendant took possession under his leasefrom respondents. She said first added defendant had lived for two
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years in her house. His father, Ekneligoda Punchi Banda, had lefthis wife Madduma Kumarihamy,. and his child first added defendant,and come and lived with plaintiff as her husband. In cross-examination she admitted she could not give the extent of the landsshe claimed, but added that the extent was about 50 or 60 amunams,and that she “ went by the boundaries.” She also stated that her. Moorman lessee was son of the lessee under first added defendant.It is stated by the witness Punchirala that first added defendant(described sometimes as “ second defendant ”) managed all the landsof the “ Walauwa,” ».e., of the “ family.” “ Whenever he comes tothe lands, we reckon him as owner.” First added defendant on hispart deposed that his mother (whom we must presume to haveentered into possession upon the gift to her) possessed the land inquestion until her death eighteen years before the trial, and thatthereafter he himself possessed it. Hq produced his lease (DD 4,October 22, 1898) to M. L. Thamby, and identified lot 4 as thesituation of the plumbago pits he opened, three-fourths of a milefrom Galapitawatta. He produced also his license to open a mine(DD 5, October 10, 1898) and the proceedings in two Police Courtcases to corroborate his evidence.
The evidence adduced by plaintiff to show continuous andexclusive possession adversely to first added defendant is not strongand is not conclusive ; and it must be remembered that, whereasplaintiff had to prove such possession uninterruptedly over a periodof’ten years, proof by respondents of possession of the land forhowever short a space, if adverse to and independent of plaintiff,would destroy the effect of plaintiff’s antecedent possession, andnecessitate a fresh period of ten years. The title, as already pointedout, being in first added defendant, the evidence does not satisfy methat plaintiff had such prescriptive possession, and that the viewtaken of it by this Court was wrong. I would therefore affirm ourjudgment with costs.
Middleton J.—
The two questions in review in this case are whether the SupremeCourt was right in holding (1) that a Kandyan deed of gift No. 6,918,dated May 25, 1864, was irrevocable: (2) that the plaintiff hasnot established her claim to the lands in dispute by prescriptivepossession.
The deed of gift in question was given by Loku Kumariliamy, themother of the plaintiff Tikiri Kumarihamy, to another daughterMadduma Kumarihamy, and after reciting that Madduma Kumari-hamy had for four years rendered her succour and assistance, andhad incurred an expenditure in cash of about £100 by way of feesand presents to physicians who had attended the donor in her illness,stated that the donation was made for assistance rendered, and
1909,
March 2,
Wendt J.
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1909. declared that, henceforth neither she nor her descendants norMarch 2. inheriting children, grandchildren, heirs, administrators, or assignsMiddleton whosoever should from that date forth by act or word raise anyJ- dispute against the donation.
From the terms of the deed it appears to me clear that the donorconsidered herself under a pecuniary obligation to the donee, andhad in full contemplation her own and her heirs’ right to dispute theirrevocability of the donation, and intended by the words she usedto indicate that neither she nor they should raise the question.
I agree with my brother Wood Renton that the Courts in con-struing these deeds should look to the real nature of the transactionand the intention of the parties in each case, an opinion which Ithink may be read between the lines of the compilers of the law onthe subject.
In Pereira’s Armour, p.90, the author, quoting Sawer, enunciatesthe general doctrine of the revocability of gifts excepting thosemade to priests and temples, propounding that gifts to laymen oflands or of the bulk of the donor’s fortune, goods, or effects whenrevoked involve the indemnification of the donee irtre has been putto any expense in its acceptance, but that presents if given out ofrespect or for affection at the moment or in thankful acknowledg-ment of a benefit or service rendered to the donor are not revocable.The proviso as to indemnification applies only to gifts made tostrangers, not gifts to children, except in the case of a child doneepaying mortgage debts on the property gifted when on revocationhe must be indemnified proportionally, unless he had indemnifiedhimself from the profit of the user of the property. The author,clearly a layman, then declares the absolute right of revocation asregards bequests and testamentary dispositions.
At page 95 the author gives as an instance of an irrevocablegift the case of a proprietor executing a deed making over his landsto another person, but stipulating that the donee shall pay off thedonor’s debts and also render assistance and support to the donorduring the remainder of the donor’s life, and containing a clausedebarring the donor from revoking the gift and from resuming thelands and making any other disposal thereof. If the doneedischarges the debts, he acquires the right of a purchaser, thedonee, however, being still under the obligation to render theassistance and support to the donor.
In Molligoda v. Kepiiipola (D. C-, Handy; 29,890, March 23,1858), reported at page 24 of Lorenz, vol. III., and Austin, p. 214,it was held, affirming the decision of the District Judge, that adeed of gift though containing a clause renouncing the right ofrevocation was revocable. In that case the donor had transferredby deed of gift some lands to her binna married husband, and in thesame deed renounced her right to revoke the gift as well as herright by Kandyan law to alter, cancel, or break the same. The
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argument in that case turned principally on the construction of therenunciation clause, which the Supreme Court apparently thoughtinsufficient.
In 105, D. C., Kegalla 888, Browne A.P.J. and Lawrie J. (July5,1898) held that a clause couched as follows :—“ I do hereby debarmy own right or that of any of my other heirs to raise any disputewhatsoever to or with regard to the gift hereby made*” did notdebar the donor from revoking a gift made for past services.
In D. C., Kurunegala 13,081, Kiri Menika v. Ganrala and others(July 29, 1858), reported at page 76 of 3 Lorenz, the Full Court heldthat a Kandyan deed of gift in consideration of past and futureservices with a renunciation of the right of revocation clearlyexpressed was irrevocable.
In Taldena v. Taldena1 the right of revocation was apparentlyassumed on the facts, the only question being as to its mode.
It Dingiri Menika v. ■ Dingiri Menika 2 a deed of gift in con-sideration of marriage containing a stipulation by the donor onbehalf of himself and his heirs not to raise any objection or disputeto the grant therein made was held to be revocable.
In D. C., Kandy, 28,626 (Pereira's Collection, p. 74), the SupremeCourt felt itself bound to follow former decisions which establishedthe doctrine that deeds as well for services previously renderedas for those to be rendered in future are by the Kandyan lawrevocable. The deed in this case contained no clause speciallybarring the donor from revocation but only the usual Kandyanform of renunciation of right.
In D. C., Kandy, 21,344 (Pereira's Collection, p. 59, and Austin,p. 127), the Supreme Court held that a deed of gift of a whole estatemade to a wife in consideration of assistance already rendered fortwenty-six years to the husband and also for the purpose of receivingassistance during his lifetime was revocable.
In D. C., Kandy, 1,564 (Pereira's Collection, p. 60), the SupremeCourt held a deed of gift irrevocable where no considerationapparently was alleged, but because it contained the words by thedonor “ he shall possess the same without disturbance, and neitherof us nor any descendants of ours can hereafter resume or giveaway the same.”
In D. C., Kandy, 22,404 (Austin, p. 140), the Supreme Court heldthat where a person has assigned by deed land to another in con-sideration of assistance to be rendered, even if such assistancehas been rendered, the deed is revocable, and that in the case ofa series of donees of land the last donee has the preferent claim,but that if any donee has been subjected to any disbursement out
of his funds it is for him to prove it, the assumption being thatthe lands given left him harmless during the time he renderedassistance.
1 (1903) 3 Bala&ingham, 133.* (1907) 9 N. L. B. 131.
1909.
March 2.
Middleton
J.
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1909.
March 2.
Middleton
J.
In Bologna v. Ptmchi Mahatmeya1 the Full Court consisting ofCreasy C.J. and Temple and Stuart J.J. on July 17, 1866, heldthat it was impossible to reconcile all the decisions as to therevooability of or non-revocability of Kandyan deeds, but theSupreme Court thinks the general rule is that such deeds arerevocable, and also that before a particular deed is held to beexceptional to the rule, it should be shown that the circumstanceswhich constitute non-revocability appear most clearly on the faceof the deed itself, and it held that the words in the deed underconsideration as to “ servioes continued to be rendered by the,donee ” did not appear to the Court sufficiently clear and strong.
In Henaya v. Rana,- it was held by Phear C.J. and Dias J. thata gift made in consideration of a past payment or advance wasirrevocable. No clause of renunciation of right to revoke seems tohave been in the deed, but the Court held that the considerationwas of a substantial character, though a past one.
From a review of the authorities it seems to me that Kirimenikav. Oanrala and others3 decided by the Full Court and Henaya v. Rana *must be held to govern the present case, while I share, the surpriseexpressed that Mr. Justice Browne was unable to see that the woldsused in D. 0., Kegalla, 888. were not sufficiently strong to indicatethe donor’s intention to renunciate his right.
In my opinion the ruling laid down by the Full Court in Bolognav. Pnnchi Mahatmeya,' taken in conjunction with the ruling of theFull Court in Kirimenika v. Oanrala and others? should guide thedecisions of this Court in determining whether or not a Kandyandeed of gift is revocable or not. I would support the judgments inreview on this question.
As regards prescriptive possession, the evidence is that LokuKumarihamy gifted the land in question to Madduma, her daughter,in 1864, and revoked the gift in 1865, and then gifted a portion ofland called Galagodahena appurtenant to the land called Galapita-watta of 1* amunam in paddy sowing extent to the plaintiff in 1867.
The land now in claim by the plaintiff appears to be lots 1, 2, 3, 4,and 5 depicted on Mr. Ferdinands’ plan of survey. It does notappear that Loku Kumarihamy ever -purported to convey these lotsto the plaintiff, but even if she did, the effect of the judgment of thisCourt in upholding the deed of 1864 as irrevocable is to vest the legaltitle to them in Maddumahamy, from whom the added defendant,her son, derives his title. The burden then was on the plaintiff toprove a title by prescriptive possession.
The evidence, as is usual in these cases, is by no means satisfactory,and, as my brother Grenier says, the added defendant maydeserve all that has been said of him by the District Judge, but it isdifficult, on the face of the facts, that second added defendant lived* Bam. 63-68, p. 196* (1878) 1 S. C. C., p. 47.
* (1868) 3 Lor. 76.
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with the plaintiff and managed the property, and was looked uponby the headman in 1904 (p. 20) as owner and managed the plumbagomine, to say that the plaintiff has proved a title by exclusive adversepossession as against the added defendant for upwards of ten years.In my opinion therefore the appeal fails on this question, and Iwould support the judgments in review in their entirety. Theappeal must therefore be dismissed with costs.
Judgment in appeal affirmed.
1909.
March 9.
MlDm/ETON
J.